Judge Says Feds Need Reasons for Border Tech Searches

BOSTON (CN) — A federal judge in Boston ruled Tuesday that the government’s suspicionless searches of international travelers’ smartphones and laptops at border ports of entry and airports violate the Fourth Amendment.

“Although governmental interests are paramount at the border, where such non-cursory searches…amount to non-routine searches, they require reasonable suspicion that the devices contain contraband,” U.S. District Judge Denise Casper wrote in her 48-page opinion.

Casper, a Barack Obama appointee, partially granted a motion for summary judgment from the American Civil Liberties Union and Electronic Frontier Foundation, which sued the federal government in 2017 on behalf of 11 people whose laptops or smartphones were searched while attempting to reenter the United States.

The order requires agents with Immigration and Customs Enforcement as well as Customs and Border Protection to show reasonable suspicion before searching the electronic device of someone entering, or reentering, the country.

Casper’s order fell short of granting the ACLU and EFF’s request to require a warrant for those searches.

“The court recognizes the governmental interests are different at the border and holds that reasonable suspicion and not the heightened warrant requirement supported by probable cause that plaintiffs seek here and as applied to the search in Riley is warranted here,” the judge wrote, referencing a previous case involving a police officer’s right to search a cell phone without any additional non-electronic evidence of wrongdoing.

Casper ruled against the government’s own motion for summary judgment, and also against a motion from the ACLU and EFF to expunge any information that had already been gathered from electronic device searches at the border.

She noted that expunging existing data was not necessary since the government would still be required to show reasonable suspicion in order to justify any use of that data.

“That is, in the future, whether information has been retained from prior searches or not, agents must be able to point to specific and articulable facts for reasonable suspicion to believe that plaintiffs’ electronic devices contain contraband, which also addresses the concern about any likelihood, greater than the general public of U.S. citizens returning to the U.S. borders, of being subject to a non-cursory search,” the judge wrote.

The plaintiffs in the lawsuit include a military veteran, journalists, students, an artist, a NASA engineer and a business owner. All were reentering the United States from business or personal travel when border officers searched their devices. None were subsequently accused of any wrongdoing.

“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in a statement. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”

The court order puts an end to CBP and ICE’s asserted authority to search and seize travelers’ devices for purposes other than the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of contraband before they can search a traveler’s device.

During the course of the lawsuit, an attorney for Customs and Border Protection said the agency had searched about 30,200 electronic devices in 2018, up 60% from the previous year. According to the agency, searches can range from downloading the contents of a suspect laptop to simply glancing at the last few photos on a digital camera’s memory card.

Meanwhile, the ACLU and EFF obtained information through discovery that CBP and ICE were allowing their agents to search devices with little to no justification for legitimate purposes.

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices," said Sophia Cope, EFF senior staff attorney.

International travelers returning to the United States have reported numerous cases of improper searches in recent months, according to reports from the ACLU.

A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cellphone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.

A spokesperson from the Department of Homeland Security, which oversees ICE and CBP, did not respond Tuesday to an emailed request for comment.

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